Supreme Court Healthcare Ruling

03-30-2012, 05:07 PM

One thing I'm curious about is if the SCOTUS decides that requiring an individual to purchase medical insurance is unconstitutional then what will the fallout be for state laws like Romneycare and also the mandatory car insurance laws.

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I am hoping that the forcing us to buy insurance is found unconstitutional, but having a federal health care system is not. What I wonder is if they can do that and not kill the health care reform bill that as been passed, or if the whole thing gets tossed out and has to be rewritten.

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It will be interesting to see how many justices are clear about their politics interfering with the law ruling.

All of them are. That's why it's a life-time appointment. It's about the law and only the law. Pure deliberation and decision taking. The supreme court is as objective as a body can be and still have human beings as members. Listen to them speak on C-SPAN sometime. They are not at all subject to public opinion, special interest groups or lobbyists and they don't move on anyone's schedule but their own.

Yes, they have differing points of view on some matters but you won't see them sparring with opposing viewpoints in front of microphones to score points on the daily news cycle. That kind of dissent is kept behind doors and opinions are written rooted in law, not personality, money and politics. The Supreme Court is not at all like the politics we see in Congress. It's great.

All of them are. That's why it's a life-time appointment. It's about the law and only the law. Pure deliberation and decision taking. The supreme court is as objective as a body can be and still have human beings as members. Listen to them speak on C-SPAN sometime. They are not at all subject to public opinion, special interest groups or lobbyists and they don't move on anyone's schedule but their own.

Yes, they have differing points of view on some matters but you won't see them sparring with opposing viewpoints in front of microphones to score points on the daily news cycle. That kind of dissent is kept behind doors and opinions are written rooted in law, not personality, money and politics. The Supreme Court is not at all like the politics we see in Congress. It's great.

The Supreme Court is very political. Each justice has his/her own agenda. They quote law to support their viewpoint. Kind of like people interpreting the bible to support their own beliefs.

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This may be the most purely political Supreme Court of the United States in memory. And that may bode well for the Obamacare case before the court.

The mandate issue under consideration is laughable. There is nothing unique or unusual about the 'mandate' - which is not even a mandate - the "tax penalty", approximately $700 for those who are able to obtain Medical Insurance but choose not to, is unenforceable. If they choose to not add the amount to their tax returns, there is no consequence, neither the IRS nor anyone else has the authority to do anything about it, no charges, no prosecution, no attempts to collect it. If you fail to follow the mandate, the penalty is completely voluntary.

The argument that the government cannot require citizens to pay for something they don't want to is childish and wrong. It happens all the time. Taxes, licenses, garbage fees. So they pretzel their logic to say that what makes it unconstitutional is making people purchase it from a private source, even though you can be coerced to buy from the government - such as Social Security and Medicare social insurance contributions. Again, nonsense. One of the earliest acts of the Republic was to require merchant marines to buy private hospital insurance. Another required all free men of militia age to purchase and keep a firearm. Laws against public nudity require the purchase of clothing from private sources.

The 'broccoli' argument is the most absurd. Usually run along the lines of "if the government can require you to buy health insurance, what is next, broccoli?". As if the idea of buying broccoli is so morally bankrupt that anything that starts the slippery slope that ends with broccoli is evidence of unequaled tyranny. Here's the thing, not buying health insurance is very very costly, since lack of insurance does NOT prevent the delivery of medical care, it just pushes the cost onto others. This is not theoretical, we know that right now, every private health insurance policy in America is about $1000 more expensive because of the cost of treating the uninsured. People who can afford insurance but choose not to buy it are transferring real and substantial costs to others. This does not happen with broccoli.

On legal and logical grounds the case before the Supreme Court is groundless. But this is a political court, and this is a partisan political issue, so here it is. We know that a solid majority of the court is aligned with the political forces that want this law overturned. But will they?

Consider this. This court took this case politically, they will rule on it politically. But what is the bigger picture? Chief Justice Roberts is already worried about his troubled legacy, particularly due to his pivotal role in the disastrous Citizens United outrage. Scalia is concerned about his own reputation for making principled judgments narrowly focused on the minutia of constitutional law and history, yet always seems able to bend them to reach his desired political result. Alito is shedding his "Scalito" reputation as Scalia's second vote. Kennedy, who values his role as 'reasonable swing vote' has been anything but, he almost always swings right in politically charged cases. Only Thomas is unapologetically always political. The other 4 conservatives have reasons concerning reputation and legacy to at least consider being something other than a rubber stamp. But they are still going to make a political decision in this case.

What factors might influence their political decision? Well ... there is an election going on. What do you suppose will be the political fallout of a decision that overturns, or guts the Affordable Care Act (Obamacare) just three months before the election? Probably not much on the presidential race, by all accounts the GOP will be putting up the most unpopular nominee in decades (no matter who gets the nod), so they will depend on their Citizens United enabled billions to use saturation attack ads to close the gap. The presidential election will depend on if overwhelming advertising is enough to decide the vote. But that is not the only election. The GOP has a commanding majority in the House to defend, and only need switch two or three seats to take the Senate. But in the aftermath of an anti-Obamacare SCOTUS decision, what happens? Outrage and anger in the Democratic base, and not a few independents too. When they lose it, they will suddenly notice all the very popular things in ACA that they and even Republicans like and overwhelming want, all taken away. Lots of outrage and anger.

Elections very seldom turn on persuasion, they are decided by which side is most effective at turning out its partisans and discouraging its opponents partisans - that's how negative ads work, they don't change minds, they make people stay home. But an anti-Obamacare decision will angerize the Democratic base, and they will turn out in numbers not seen since ... 2008. The GOP base is already energized in its hatred of Obama, and an anti-Obamacare decision will not increase that, indeed they may become less energized in their satisfaction with the political win and its slapdown of Obama.

So there you have it, the most likely political outcome of the Supreme Court overturning or gutting Obamacare will be new and larger Democratic majorities in the House and Senate - with the ability to repair Obamacare, or even replace it with single payer. That is what those four conservatives will have to consider while making their political decision on Obamacare. Are they willing to make a bad decision, that fulfills their partisans' political desire to kill Obamacare, knowing it will lead to GOP defeat and lasting harm to the conservative movement? Or will they burnish their reputations and save the GOP (despite itself) by reluctantly upholding it.

I don't know, they have proven themselves to be incredibly reckless, but I think there is a very good chance that at least one of them will choose to make the right decision for all the wrong reasons - and one is all that it will take.

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All of them are. That's why it's a life-time appointment. It's about the law and only the law. Pure deliberation and decision taking. The supreme court is as objective as a body can be and still have human beings as members. Listen to them speak on C-SPAN sometime. They are not at all subject to public opinion, special interest groups or lobbyists and they don't move on anyone's schedule but their own.

Yes, they have differing points of view on some matters but you won't see them sparring with opposing viewpoints in front of microphones to score points on the daily news cycle. That kind of dissent is kept behind doors and opinions are written rooted in law, not personality, money and politics. The Supreme Court is not at all like the politics we see in Congress. It's great.

When I first became an attorney I thought your statements might be true. No longer - as evidenced by the appointment and confirmation process from both sides and the partisanship displayed in ruling over the last several decades. IMHO it is now all about politics and supporting the position of the side that appointed you and rammed through your confirmation.

Comment

This may be the most purely political Supreme Court of the United States in memory.

I don't think "political" is quite the right word. I would agree that it may be more ideological than the earlier courts. The only decision that I suspect was politically motivated was the ruling against Gore in the election dispute.

The mandate issue under consideration is laughable. There is nothing unique or unusual about the 'mandate' - which is not even a mandate - the "tax penalty", approximately $700 for those who are able to obtain Medical Insurance but choose not to, is unenforceable.

That is interesting. That could change if it is seen to be a problem, but only President Romney could get that through Congress at this point. Now there is an idea for Democrats to chew on.

The argument that the government cannot require citizens to pay for something they don't want to is childish and wrong. It happens all the time. Taxes,

You aren't buying something there. The government is just taking your money.

licenses,

What license is everyone required to buy? You can go through life without buying any license.

garbage fees.

You aren't required to subscribe trash pickup. At least nowhere I have lived.

So they pretzel their logic to say that what makes it unconstitutional is making people purchase it from a private source, even though you can be coerced to buy from the government - such as Social Security and Medicare social insurance contributions.

Those are simple taxes. You don't get anything for paying them.

Again, nonsense. One of the earliest acts of the Republic was to require merchant marines to buy private hospital insurance. Another required all free men of militia age to purchase and keep a firearm.

Now you are onto something. Have these two examples been presented to the Supremes? And could Ginsburg et al stand to live with that being the basis? They Hate the idea of individuals having military weapons.

But even if those are early examples of Federal requirements to buy something, that doesn't mean that they are Constitutional. Its like citing the Alien and Sedition Acts as indicating that its all right to throw opposition newspaper publishers in prision.

Laws against public nudity require the purchase of clothing from private sources.

Nope. You can make your own clothes. My ancestors did. Starting from flax seeds.

The 'broccoli' argument is the most absurd. Usually run along the lines of "if the government can require you to buy health insurance, what is next, broccoli?". As if the idea of buying broccoli is so morally bankrupt that anything that starts the slippery slope that ends with broccoli is evidence of unequaled tyranny.

Its all about the creation of another venue for the Federal Government to micromanage our lives. But that argument seems political to me.

Here's the thing, not buying health insurance is very very costly, since lack of insurance does NOT prevent the delivery of medical care, it just pushes the cost onto others. This is not theoretical, we know that right now, every private health insurance policy in America is about $1000 more expensive because of the cost of treating the uninsured. People who can afford insurance but choose not to buy it are transferring real and substantial costs to others. This does not happen with broccoli.

But it does. If you don't eat healthy food, you get sick, and then everything you just wrote kicks in.

This court took this case politically, they will rule on it politically.
I don't know, they have proven themselves to be incredibly reckless, but I think there is a very good chance that at least one of them will choose to make the right decision for all the wrong reasons - and one is all that it will take.

Don't be so sure. I hear Sotomayor was asking pointed questions...

Comment

I am hoping that the forcing us to buy insurance is found unconstitutional, but having a federal health care system is not. What I wonder is if they can do that and not kill the health care reform bill that as been passed, or if the whole thing gets tossed out and has to be rewritten.

Here is the question a lot of people do not seem to be able to understand about the health care law. If people are not forced to buy insurance, who then pays for that person's health care cost when they all of a sudden have cancer or a heart attack etc etc? It is MORE expensive to be uninsured than insured. It is often the young and the poor who do not have health insurance and they all of a sudden get sick, end up in ER and are given a bill they can't afford, do you know who ends up paying the bill? The taxpayers. In the end, it is beneficial for everyone to be insured and it is beneficial for the tax payer.

Comment

Here is the question a lot of people do not seem to be able to understand about the health care law. If people are not forced to buy insurance, who then pays for that person's health care cost when they all of a sudden have cancer or heart attack etc etc? It is MORE expensive to be uninsured than insured. It is often the young and the poor who do not have health insurance and they all of a sudden get stick, they end up in ER and are given a bill they can't afford, do you know who ends up paying the bill? The taxpayers. In the end, it is beneficial for everyone to be insured and it is beneficial for the tax payer.

That might be a positive result if they just throw out the individual mandate. Then insurance companies would scream so loud that congress would be forced to do something real. Like Medicare for all.

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If the law is struck down, the legislators can "fix" it by removing the requirement to treat everyone in the emergency room. No other doctors office has to treat everyone who come in their doors. Only the ER. Eliminate that requirement and the only area that passes on their unpaid bills to everyone else will stop. Then all of our premiums will drop by $1000 each. Or at least in theory.

Comment

Here is the question a lot of people do not seem to be able to understand about the health care law. If people are not forced to buy insurance, who then pays for that person's health care cost when they all of a sudden have cancer or heart attack etc etc? It is MORE expensive to be uninsured than insured. It is often the young and the poor who do not have health insurance and they all of a sudden get stick, they end up in ER and are given a bill they can't afford, do you know who ends up paying the bill? The taxpayers. In the end, it is beneficial for everyone to be insured and it is beneficial for the tax payer.

Ever notice how conservatives never seem to talk about who pays the cost for the uninsured? If the conservatives would open their mouths about paying your own way like they say everyone should do then the whole conservative argument against mandatory insurance is blown to bits. Can a conservative explain why people don't have to pay their own way for medical care while they should pay their own way for everything else?

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Oh, there is no doubt that single payer is constitutional, even the conservative justices granted that, that's already been settled with Medicare. The whole question of the so called 'mandate' is whether it is a 'penalty' or a 'tax'. If it is a tax, it is constitutional. If it is a penalty, the conservatives say maybe not. Here's the thing - the mandate was originally written as a tax in the Senate (where the mandate was added to the bill by GOP Senator Grassley), but the House version called it a penalty. So it became a 'tax penalty'. All agree that it works exactly the same no matter what you call it. No difference whatsoever. But according to Scalia, if you label it a tax it is constitutional, if you label it a penalty, it is not. The whole matter is over spelling, NOT substance.

That means that if SCOTUS does overturn ACA because of the mandate, it is a very simple one word fix for Congress to reinstate it. But of course today's Congress can't fix a single word, and the court knows it, in fact they even discussed that very fact.

This case is not about constitutional issues. It is politics from beginning to end. And it will be the political calculations of the justices that decides it, not constitutional law.

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It is often the young and the poor who do not have health insurance and they all of a sudden get stick, they end up in ER and are given a bill they can't afford, do you know who ends up paying the bill? The taxpayers.

Gee, I thought it was those who do have health insurance coverage who end up paying the bill by having their premiums increased. Or the hospital writes it off as a loss if its charge of $8.00 for each Tylenol pill dispensed to everyone else doesn't cover the ER cost.

By the way, how are the young and poor suppose to afford to pay for health insurance?